6.  The applicant was born in 1965 and is serving a sentence of imprisonment in Uzbekistan.
7.  The applicant arrived in Russia in July 2000 and resided in the town of Michurinsk in the Tambov Region. It appears that until mid-2003 he returned to Uzbekistan for several short periods of time. In 2004 he was convicted by a Russian court and sentenced to six months’ imprisonment for having used a false migration card. After his release, in October 2004 he moved to Usman, a provincial town in the Lipetsk Region, where he was employed as a cook. On 31 January 2005 the applicant sought a temporary residence authorisation (разрешение на временное проживание) and apparently applied for Russian citizenship. It appears that his application was rejected on 28 February 2006 (see paragraph 17 below). According to the applicant, he became aware of that refusal only on 29 September 2006.
8.  Most recently, from 23 December 2005 to 23 March 2006 the applicant had a valid temporary residence registration (временная регистрация) in the Lipetsk Region. According to the applicant, on an unspecified date in 2006 the Chief Inspector of the Criminal Police of Usman in the Lipetsk Region refused to renew it. It appears, however, that no formal decision was issued.
9.  According to the Uzbek authorities, in April 2005 two Uzbek nationals complained to the Uzbek National Security Service (NSS) that the applicant had been engaged in anti-constitutional activities during an unspecified period of time. He left Uzbekistan after his accomplices had been apprehended.
10.  On 29 April 2005 the NSS of the Surkhandarianskiy Region initiated criminal proceedings against the applicant under Article 159 § 3 (b) and Articles 216, 244-1 and 244-2 of the Uzbek Criminal Code (see paragraph 76 below). They accused him of membership of Hizb ut-Tahrir (HT), a transnational Islamic organisation, which is banned in Russia, Germany and some Central Asian states. On 8 May 2005 the Uzbek authorities issued an arrest warrant in respect of the applicant with reference to the charges under Articles 159 and 244-1 of the Uzbek Criminal Code.
11.  On 2 February 2006 the applicant was apprehended in the town of Gryazi in Russia and taken into custody. On 4 February 2006 the Gryazi Town Court of the Lipetsk Region authorised his detention with a view to extradition to Uzbekistan, relying on Article 108 of the Code of Criminal Procedure (CCrP). It did not set a time-limit for which that detention was authorised. The detention order was amenable to appeal to the Regional Court within a three-day time-limit. The applicant did not appeal.
12.  In March 2006 the Uzbek Prosecutor General’s Office requested the applicant’s extradition and provided assurances that he would not be surrendered to another State without Russia’s consent and would not be prosecuted or punished for any offence committed prior to his extradition and for which extradition would have been refused; and that he would be able to leave Uzbekistan after being tried and serving his sentence.
13.  On 12 April 2006 the Lipetsk regional prosecutor instructed the administration of the remand centre to keep the applicant in detention under Article 466 of the CCrP, the 1993 Minsk Convention and the Prosecutor General’s Instructions of 20 June 2002 (see paragraphs 53, 54 and 66 below).
14.  On 22 September 2006 the Prosecutor General’s Office of the Russian Federation rejected the extradition request because some of the acts imputed to the applicant were not criminal offences in Russia, while the others had been committed before becoming punishable under the Russian Criminal Code, or prosecution for such offences had become time-barred.
15.  On 26 September 2006 the Prosecutor General’s Office informed the Prosecutor’s Office of the Lipetsk Region that the applicant’s extradition had been refused, and instructed that office to check the grounds for the applicant’s presence in the territory of Russia and to decide whether he should be removed from Russia.
16.  On 28 September 2006 the regional prosecutor instructed the Gryazi Prosecutor’s Office to check the lawfulness of the applicant’s stay in Russia and to institute proceedings against him under the Code of Administrative Offences, if appropriate. The prosecutor wrote as follows:
“...if a judge does not order administrative expulsion and if legal grounds obtain, it is necessary to decide on Mr Muminov’s deportation under section 25.10 of the Law on Entering and Leaving the Russian Federation and the Government’s Decree no. 199 of 7 April 2003...”
On the same day, the Gryazi Prosecutor’s Office ordered the applicant’s release from custody.
17.  The applicant was released on 29 September 2006. Immediately thereafter, the Gryazi Prosecutor’s Office accused him of residing in the territory of Russia in breach of Article 18.8 of the Code of Administrative Offences. It found in particular that the applicant’s application “for permission to temporarily reside in Russia” had been rejected by the Regional Office of the Federal Security Service (“FSB”) on 28 February 2006 and that his residence registration had expired on 23 March 2006. On the same date, the administrative file was examined by a judge in the Gryazi Town Court who discontinued the case for lack of a corpus delicti. The judge held in essence that although the applicant’s residence registration had expired on 23 March 2006, on that date and until 29 September 2006 he had been detained with a view to extradition. Having been released and charged on the same day, he could not have committed the offence imputed to him. The judgment became final after the expiry of the statutory time-limit for appeal.
18.  While in detention, in April 2006 the applicant submitted to the Lipetsk Regional Migration Authority applications for refugee status and temporary asylum in Russia. On 12 April 2006 migration officers interviewed him in the remand centre. As can be seen from the interview record, signed by the applicant, he denied membership of any proscribed organisation; having learnt from his wife about the criminal charges against him in Uzbekistan, he had been planning to go there in order to clarify the situation but could not buy a train ticket. He indicated his “fear of being prosecuted for serious offences which he had not committed” as the reason for refusing to return to Uzbekistan.
19.  In a decision of 17 April 2006 the Migration Authority refused to examine the applicant’s application for refugee status on the merits, concluding that he had left Uzbekistan for “economic reasons” falling outside the scope of an admissible refugee request and that he was refusing to return there because of the criminal prosecution against him. The Migration Authority also rejected his temporary asylum application on 2 May 2006, concluding that his fear of being prosecuted for offences could not be a valid reason for granting temporary asylum. The Authority found as follows:
“...the applicant’s explanations are contradictory... On 12 April 2006 he explained that he had arrived in Gryazi to purchase a train ticket, whereas on 20 April 2006 he contended that he had been in Gryazi to seek assistance from a friend in order to lodge a complaint with the Strasbourg court. The applicant probably means the European Court of Human Rights in Strasbourg, whereas he is a national of Uzbekistan, a Central Asian republic. Besides, a complaint before that court may be lodged after the applicant has exhausted all judicial remedies in his republic; in addition, he fled justice in Uzbekistan. Thus, the applicant is manifestly trying to hide his true intentions.
All the reasons indicated by the applicant for not returning to Uzbekistan were examined together with his request for refugee status and did not justify granting such status. No other reasons were adduced in favour of granting such a status on the basis of humane considerations.
According to information from the Russian Ministry of Foreign Affairs, ‘... there was no ascertainable information about instances of torture or the sentencing of expelled Uzbek nationals to the death penalty... During the last two years Uzbekistan has taken certain measures for reform in this field... In December 2003 the Supreme Court of Uzbekistan prohibited lower courts from using in evidence confessions obtained under torture or without counsel being present. In September 2004 the Plenary Session of the Supreme Court upheld the inadmissibility of unlawfully obtained evidence...’
The seriousness of the charges against the applicant should be taken into account... The political and extremist activities of Hizb ut-Tahrir may represent a threat to national security...”
20.  In August 2006 the applicant, with the help of the Civic Assistance Committee, a non-governmental organisation helping immigrants, retained Ms Biryukova to represent his interests in the domestic proceedings. On 15 September 2006 the applicant obtained a copy of the decision of 17 April 2006 and appealed against it. He pleaded that he had become a refugee “sur place”[1]; being a Sunnite, he feared that he would be tortured by the Uzbek authorities in order to make him admit to the extremist charges against him. He referred to reports by the UN and international non-governmental organisations about cases of ill-treatment against several persons in a similar situation.
21.  On 24 October 2006 the applicant was expelled to Uzbekistan (for further details see section D below).
22.  On 27 October 2006 the Sovetskiy District Court of Lipetsk upheld the decision of 17 April 2006. The court concluded that the applicant had failed to adduce any evidence that he had been or would be persecuted for “political reasons”.
23.  On 18 December 2006 the Lipetsk Regional Court set aside the judgment of 27 October 2006 and ordered a re-examination of the matter by the District Court. On 10 January 2007 the District Court again dismissed the applicant’s complaint. It found as follows:
“... [the applicant] failed to comply with Articles 56 and 57 of the Code of Civil Procedure requiring him to adduce evidence in support of his allegation of political persecution....
[H]e has already been residing unlawfully in Russia for a long time ...
He neither submitted any evidence that he had left Uzbekistan for political reasons, nor has it been averred that his fears of persecution for political reasons were justified. He did not apply for refugee status after his unlawful entry into Russian territory. Thus, there were no legal grounds for examining his 2006 refugee application on the merits.”
The applicant’s representative did not appeal against that judgment.
24.  In the meantime, in early October 2006 the applicant obtained an appointment for an interview on 1 November 2006 at the Centre for Refugees in the Moscow Office of the United Nations High Commissioner for Refugees.
25.  On 16 October 2006 the Civic Assistance Committee requested the migration authorities to confirm the lawfulness of the applicant’s stay in Russia so that he could leave for another country that did not require a visa for Uzbek nationals.
26.  The applicant was apprehended on 17 October 2006 on the premises of the Civic Assistance Committee, apparently because of his lack of a residence registration required under the Aliens Act (see paragraph 48 below). He was then taken to the Tverskoy District Office of the Federal Migration Authority. After an interview, he was brought before a judge of the Tverskoy District Court of Moscow, who found the applicant guilty of having resided in Russia in breach of the residence regulations. The judge imposed on him an administrative fine of 1,000 Russian roubles (RUB) and ordered his administrative expulsion from Russia, which is a subsidiary penalty under Article 18.8 of the Code of Administrative Offences. According to the text of the judgment, at the hearing the applicant conceded that he had been unlawfully resident in Russia and had no definite place of residence or source of income in Russia. According to the applicant, he was not allowed to contact the Civic Assistance Committee, to be represented by a lawyer retained by it or to speak during the hearing. In a separate decision given on the same date, the judge ordered the applicant’s immediate placement in the Severnyy Detention Centre no. 1 for Aliens.
27.  On 18 October 2006 the FSB asked the administration of the detention centre not to deport the applicant without its consent and to coordinate with it all visits to the applicant, receipt of parcels by him or his telephone calls.
28.  On 19 October 2006 the applicant’s counsel lodged a statement of appeal against the expulsion order with the Moscow City Court. A hearing was set down for 26 October 2006.
29.  On 20 October 2006 the applicant issued Ms Chumakova with an authority form empowering her to institute proceedings before the European Court.
30.  On 23 October 2006 the applicant requested the Court, under Rule 39 of the Rules of Court, to prevent his expulsion to Uzbekistan. He feared immediate expulsion despite his pending appeal against the expulsion order and alleged that he would face a serious risk of ill-treatment and unfair prosecution if he were returned to Uzbekistan.
31.  On 24 October 2006 the Court indicated to the Russian Government under Rule 39 that the applicant should not be expelled to Uzbekistan until further notice. The Russian Government were notified at 5.17 p.m. Strasbourg time (7.17 p.m. Moscow time) by e-transmission through the publication of the relevant letter on the secure website used for communication between the Registry of the Court and the Office of the Representative of the Russian Federation at the European Court of Human Rights.
32.  According to the Government, the applicant left Russia at 7.20 p.m. (Moscow time) on 24 October 2006 from Domodedovo Airport for Tashkent on board flight no. E3-265. The applicant’s representative submitted a letter dated 25 December 2006 issued by the Domodedovo Airlines Company, which read as follows:
“Domodedovo Airlines cannot confirm that Mr P.T. Muminov was on board flight no. E3-265 from Domodedovo to Tashkent on 24 October 2006 since there is no boarding pass for that passenger.”
As follows from a letter of 19 December 2006 from Uzbekistan Airways, Mr R. Muminov was on board flight no. HY-602 from Domodedovo to Tashkent on 24 October 2006. According to a copy of the log entries provided by the company and produced by the applicant’s representative, that flight left Moscow at 11.50 p.m. on 24 October 2006.
33.  According to a report allegedly issued by the FSB on 22 October 2006, the applicant was questioned on 20 October 2006 in relation to his alleged extremist activities; “in view of his insincerity and taking into account the pressure by the human-rights organisations which attempt to present him as a victim of political repression, [the applicant] was removed from Russia”.
34.  According to a press release issued by the FSB on 28 October 2006, the applicant was removed from Russia on 27 October 2006.
35.  On 2 November 2006 the Moscow City Court quashed the expulsion order of 17 October 2006 and remitted the case to the District Court. The City Court found that the district judge had not specified the nature of the applicant’s allegedly unlawful conduct. The judge had not established the facts of the case, including the date of the applicant’s arrival in Russia, whether he had complied with his obligation to register at the place of his residence in Russia and when his registration had expired. Neither had the judge verified the authorities’ allegation that the applicant had been residing unlawfully in Russia since December 2005.
36.  On 29 November 2006 the District Court re-examined the case and found that “the applicant had been lawfully present in the territory of Russia when he was first apprehended and remanded in custody”; he had then arrived in Moscow on 5 October 2006 in order to apply for refugee status at UNHCR’s Moscow office; he had stayed at the office of the Civic Assistance Committee until his arrest on 17 October 2006. The District Court also indicated that the applicant had appealed against the refusal to examine his application for refugee status and that a judgment had been given on 27 October 2006 and had not yet become final. The District Court concluded that the applicant had not committed the administrative offence of “breaching the residence regulations within the territory of the Russian Federation”, and discontinued the proceedings.
37.  On 15 January 2007 the Dzhankurganskiy Criminal Court in Uzbekistan convicted the applicant of unlawful actions against the constitutional order and participation in the activities of a proscribed organisation, and sentenced him to five years and six months’ imprisonment. According to the text of the judgment, “[the applicant] pleaded not guilty at the trial, denied the charges against him and fully retracted the statement he had made during the preliminary investigation while indicating that he had been compelled to sign that statement, which he had done without reading it”. With reference to statements from two witnesses and the applicant’s pre-trial statement, the trial court found that in 1999 the applicant had become a member of HT in Uzbekistan and had engaged in propaganda concerning its activities aimed at subverting the constitutional regime and creating an Islamist state. The judgment indicated that the applicant had been represented by a lawyer. The trial judgment was amenable to appeal. It is unclear whether the applicant exercised his right to appeal against it.
38.  According to the applicant’s representative before the Court, the applicant had been refused permission to be represented by his privately retained counsel but legal-aid counsel had been appointed instead. Neither the applicant’s representative nor his family members had been informed of the exact place of his detention in Uzbekistan.
39.  The applicant’s representative before the Court wrote to the Uzbek Prosecutor General’s Office asking for information regarding the place of the applicant’s detention and the conditions of access to him. Her request was forwarded to the prosecutor in the Surkhandaryinsk Region of Uzbekistan. On 17 January 2007 the prosecutor forwarded the request to the Surkhandaryinsk Regional Court. The applicant’s representative also wrote to the Uzbek Ministry of the Interior and the Ministry of Foreign Affairs. No replies were received.
40.  On an unspecified date, the Russian authorities sent a request concerning the applicant to the Uzbek authorities. On 6 March 2007 the Uzbek Ministry of the Interior replied and enclosed a letter in Russian from the applicant dated 20 December 2006 worded as follows:
“... during my arrest and detention... the police and other law-enforcement officers did not violate my rights and did not exert any physical pressure upon me.
I have no claims against the police officers in Moscow or Lipetsk or against any other law-enforcement authority in Russia.
I confirm that this declaration is correct and written with my own hand.”
41.  According to a linguistic expert report, produced by the applicant’s representative, the above letter did not contain any significant mistakes, whereas the applicant’s personal letters contained numerous mistakes reflecting his Uzbek mother tongue’s phonetics and grammar. The expert noted that the applicant would not have been able to acquire a sufficient command of the Russian language during the three months between the date of his sample letters (September 2006) and the letter in question (December 2006). The expert concluded that the letter of 20 December 2006 had not been written spontaneously by the applicant, who had transcribed the text from the original or written it from a letter-by-letter dictation by someone else.
42.  On 28 October 2006 the Prosecutor’s Office of the Central Administrative District of Moscow initiated criminal proceedings on a complaint by the applicant’s representative about his hasty expulsion.
43.  On 12 February 2007 the Moscow military prosecutor refused to bring criminal proceedings against any FSB officers in relation to the applicant’s hasty expulsion. The prosecutor stated:
“... as a result of the joint operation by officials of detention centre no. 1, migration officers and FSB officers on 24 October 2006, [the applicant] was removed from Russia in breach of ... the Code of Administrative Offences...
It transpires from the case file that the matter of his expulsion before the judgment ... acquired legal force was raised by the FSB before the migration authority and the administration of the detention centre...
[I]t was established that the migration authority had purchased a flight ticket for [the applicant] but it had not been used ... thus, the exact time of his crossing the Russian border was not confirmed...
According to Mr K., an FSB officer, Mr Muminov’s departure was delayed pending the arrival of Uzbek officials, who purchased a new ticket for him...”
44.  On 20 April 2007 Mr G., Director of the Detention Centre for Aliens, was charged with abuse of power.  Mr G. pleaded guilty at the trial. On 24 May 2007 the Butyrskiy District Court of Moscow convicted him of abuse of power and sentenced him to a fine of RUB 35,000. It held, inter alia:
“... being aware that the expulsion order in respect of Mr Muminov had not become final, Mr G. violated his defence rights and authorised the execution of the expulsion order at around 5 p.m. on 24 October 2006... As a result, Mr Muminov was put on flight no. HY-602 leaving for Tashkent...
Besides, ... on 26 October 2006[2] the European Court of Human Rights indicated to the Russian authorities that he should not be removed from Russia. However, the Russian Federation was unable to comply with that decision as a result of Mr G.’s unlawful actions.”
It appears that that judgment was not appealed against and became final.